Citation Nr: 0833440
Decision Date: 09/30/08 Archive Date: 10/07/08
DOCKET NO. 05-16 939 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased disability rating for post-
traumatic stress disorder (PTSD), currently evaluated as 30
percent disabling.
2. Entitlement to a total rating based on individual
unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran had active military service from April 1966 to
March 1969, from June 1969 to June 1975, and from August 1976
to January 1989. The veteran's awards and decorations
include the Silver Star, the Combat Infantryman's Badge, and
the Purple Heart.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an October 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama. The veteran testified before the
undersigned at a hearing held at the RO in June 2005.
Additional evidence was received at the hearing, accompanied
by the veteran's waiver of any right to initial RO
consideration of the evidence.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran contends that the evaluation currently assigned
his PTSD does not accurately reflect the severity of that
disability. He also contends that PTSD renders him unable to
obtain or maintain gainful employment.
At his hearing before the undersigned, the veteran indicated
that he is in receipt of disability benefits from the Social
Security Administration (SSA) based at least in part on his
PTSD. As any records held by that agency are clearly
relevant to the issue on appeal, they should be obtained.
On his April 2005 VA Form 9, the veteran indicated that he
was denied enrollment in a program of VA vocational
rehabilitation on the basis that such a program was
infeasible in light of his disabilities. The veteran's VA
Vocational Rehabilitation folder should be obtained.
In addition, given that the veteran was last examined in
connection with his PTSD claim in June 2004 (prior to the
grant of service connection for the disorder), and in light
of the other development requested above, the Board finds
that another VA examination of the veteran would be helpful
in the adjudication of his claims.
The Board lastly notes that, although this case was
transferred to the Board shortly following the veteran's
hearing before the undersigned, for reasons which remain
unclear the case was not forwarded to the undersigned until
recently. In October 2007, the veteran submitted a claim for
service connection for prostate cancer, in connection with
the RO appears to have undertaken the initial stages of
evidence development. The Board notes that the record shows
the veteran served in Vietnam, and that medical evidence
submitted by him in connection with the claim shows that he
was diagnosed with prostate cancer. As this claim for
prostate cancer may very well impact on the TDIU claim, the
Board finds that adjudication of the latter issue should be
deferred until the RO has adjudicated the former matter.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. After undertaking any necessary
development, the RO should adjudicate the
veteran's claim for service connection
for prostate cancer.
2. The RO should contact the veteran and
request that he identify specific names,
addresses, and approximate dates of
treatment for all health care providers,
private and VA, who may possess
additional records pertinent to the
claims on appeal. When the requested
information and any necessary
authorizations have been received, the RO
should attempt to obtain copies of all
pertinent records which have not already
been obtained. In any event, the RO
should obtain the veteran's VA Vocational
Rehabilitation folder and attach it to
the claims folders.
3. If the RO is unsuccessful in
obtaining any medical records identified
by the veteran, it should inform the
veteran and his representative of this
and ask them to provide a copy of the
outstanding medical records.
4. The RO should attempt to obtain a
copy of any SSA decision awarding
disability benefits for the veteran,
copies of all medical records upon which
any such SSA disability benefit award was
based, and a copy of any medical records
associated with any subsequent disability
determinations by the SSA for the
veteran.
5. Thereafter, the RO should arrange for
a VA psychiatric examination of the
veteran by a physician with appropriate
expertise to determine the extent of his
service-connected PTSD. The examiner
should indicate with respect to each of
the psychiatric symptoms identified under
the schedular criteria for rating mental
disorders whether such symptom is a
symptom of the veteran's service-
connected psychiatric disorder. The
examiner should also provide an opinion
concerning the degree of social and
industrial impairment resulting from the
veteran's service-connected psychiatric
disorder, to include whether it renders
the veteran unemployable, and a global
assessment of functioning score with an
explanation of the significance of the
score assigned.
All indicated studies should be
performed, and the rationale for all
opinions expressed should be provided.
The claims files must be made available
to the examiner.
6. The RO should also arrange for a VA
general medical examination of the
veteran by a physician with appropriate
expertise to determine the extent of his
service-connected residuals of a gunshot
wound to the right femur; residuals of a
shotgun wound to the right foot;
residuals of a shrapnel wound to the left
foot; cervical spine disability; Human
Immunodeficiency Virus infection;
hypertension; and kidney stones. All
indicated studies should be performed,
and all findings should be reported in
detail. Following examination of the
veteran, the examiner should provide an
opinion as to whether the veteran's
service-connected disorders, individually
or in combination, render the veteran
unable to secure or follow a
substantially gainful occupation. The
rationale for all opinions expressed
should be provided. The claims files
must be made available to the examiner.
7. The RO should then prepare a new
rating decision and readjudicate the
issues on appeal. If the benefits sought
on appeal are not granted in full the RO
must issue a supplemental statement of
the case, and provide the appellant and
his representative an opportunity to
respond.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case and the period for submission of additional information
or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002)
has expired, if applicable, the case should be returned to
the Board for further appellate consideration, if otherwise
in order. By this remand, the Board intimates no opinion as
to any final outcome warranted. No action is required of the
veteran until he is notified by the RO. The veteran and his
representative have the right to submit additional evidence
and argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).